Supreme Court shrugs at NH data ban

The Supreme Court will not take on a New Hampshire data ban originally enacted in 2006, overturned 10 months later by a district court, and then reinstated by a federal appeals court last November.

In April, marketing research firms IMS Health and SDI's Verispan asked the Supreme Court to weigh in on the constitutional validity of New Hampshire's Prescription Information Law, arguing that prescriber-identifiable data is protected commercial speech under the First Amendment.

According to Richard Head, associate attorney general in New Hampshire, prescriber identifiable data enhances a sales rep's ability to shift a physician's prescribing behavior toward a branded drug, when a generic may be more appropriate. “Driving physicians away from an equally effective generic toward a branded drug has the obvious effect of increasing healthcare costs related to prescription drugs,” said Head. “Older drugs that have been tested, that have a safety record, are now being bypassed for heavily marketed brand drugs.”

Head added that new drugs without an equally effective generic should be prescribed based on “evidence-based information…not specifically-tailored advertising.”

Philip Oliva, director of external affairs at IMS Health, said the notion that prescriber and patient-level data drives up healthcare costs is “not reality.” According to Oliva, at least 70% of all prescriptions are for generics, with drug prices in general accounting for only one-tenth of overall healthcare costs.

The Supreme Court's refusal to hear the New Hampshire case comes just a day before Vermont's data ban goes into effect, on July 1, after a federal court quashed challenges to the law in May. The Vermont ban will be challenged anew in the Second Circuit Court of Appeals, with a decision expected by spring of 2010, according to Oliva. IMS Health is filing a Merits Brief in that case tomorrow.

Nationally, states are moving away from data bans, said Oliva, adding that no states have passed commerical data legislation akin to New Hampshire, Vermont and Maine since 2007, although 20 to 25 have investigated the issue. “The federal trend is toward more transparency,” said Oliva.

Maine, the third state with a commercial data ban of sorts, allows companies to collect and sell prescriber data, but gives physicians a choice to “opt-out,” or to demand that their prescribing behavior and other practice-related details be kept confidential.